By Janita Kan
A federal appeals court on Friday heard oral arguments in a dispute between Congress and the Trump administration over the subpoena demanding that former White House counsel Don McGahn testify before the House Judiciary Committee.
In the case before the U.S. Court of Appeals for the District of Columbia Circuit, the three-judge panel is deciding whether to enforce the subpoena requiring McGahn to testify before House lawmakers.
McGahn, who was viewed as a key witness in then-special counsel’s Robert Mueller’s investigation, was subpoenaed by the chamber’s Judiciary Committee in April to provide documents and appear before lawmakers as part of their investigation of possible obstruction of justice by President Donald Trump—something that Mueller didn’t conclude on in his report. Trump has denied any wrongdoing.
The White House blocked his appearance in May, asserting executive privilege over the documents. This prompted House Democrats to subsequently sue McGahn in August in an attempt to enforce the subpoena.
In November, a district court judge ruled that McGahn must testify before the House, saying that executive branch officials are “not absolutely immune” from the compulsory congressional process, even if the president expressly directs the official’s non-compliance. The Justice Department (DOJ) subsequently appealed the decision to the appeals court.
On Friday, DOJ lawyers urged the judges to rule that the court did not have the authority to decide on interbranch disputes and that Congress lacked standing to bring a lawsuit to enforce their subpoena.
Justice Department lawyer Hashim Mooppan argued that in an interbranch dispute, no one has the standing to enforce a subpoena in the court, as it would shift the power from the executive to the legislative and radically change the court’s role.
Mooppan said the traditional role of the court is to preside over cases relating to private rights such as in cases protecting private parties from the government.
“When instead you have a political food fight, when you’ve got Congress on the one side, and the Executive on the other side, and the Judiciary in the middle, picking and choosing who the winners are, that is not the traditional role of the federal courts,” Mooppan told the judges. “And that is when the public might wonder why with all respect, unelected, unaccountable judges are deciding who wins a political fight.”
He also added that if the court “referees” in disputes between political branches, it risks politicizing the court and undermining public confidence in the court.
Mooppan also went on to argue that if the court started ruling on disputes “it will never end.”
“There will be case after case after case and this court will be in the business of resolving disputes between the branches over information,” he told the judges. “It won’t be good for the courts. And it frankly won’t be good for either of the political branches, because sometimes the House will lose some of those cases, and then they will have less power than they had before.”
Meanwhile, House lawyers tried to persuade the court to enforce the subpoena on McGahn, arguing that the information could give rise to new articles of impeachment against Trump. The House approved two articles of impeachment in December against the president in a partisan vote.
The House committee’s lawyer, Megan Barbero, said that if the committee is unable to obtain a judicial remedy for enforcing the subpoena then it would “shift the balance of power significantly in favor of the executive branch.”
Judge Thomas Beall Griffith asked her whether her arguments are to protect the House’s oversight power or to discover more evidence for further articles of impeachment against the president.
Barbero replied that they were here because of impeachment purposes related to the existing articles of impeachment and the committee’s ongoing investigation, citing the House’s Dec. 23 brief.
“McGann’s testimony remains central to the committee’s ongoing investigation into the president’s obstructive conduct,” she said. “And if his testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the existing articles, that committee will proceed accordingly, including, if necessary, by considering whether or recommend additional articles.”
She also argued that McGahn’s testimony is necessary because it would help the committee find evidence of a “pattern of misconduct” by the president.
A similar three-judge panel, with two judges from this case, heard oral arguments on Friday for another case related to the release of grand jury materials from Mueller’s investigation.
